McKee v. Administrators of McKee

LeGrand, C. J., delivered the opinion of this court. We are of opinion that the circuit court properly refused the injunction asked for in this case. And this opinion we rest upon the insufficiency of the averments in the bill. Inasmuch as the papers will be returned to the court below, for its further action in the premises, if such should be desired by the complainants, we give a brief statement of the principles which should govern the decision of the case. The decision depends, principally, on the 4th section of the Act of 1842, chapter, 293, which provides that “in case of the death of the wife her slaves. shall descend and go to [358] her children and their descendants, subject to the use of the husband during his life, without liability to his creditors.” Heretofore the question has been before this court and fully .considered, and an opinion prepared by one of its members, (Judge Tuck,) in relation thereto. ''This was in the case of Hammett vs. Herbert, heard and decided at June term 1859. As the court was then constituted, the judges were equally divided in opinion in regard to it, and for that reason, in accordance with the practice of the court, no opinion was filed. The judges who sat in this case, concurring with Judge Tuck in his construction of the Act, adopt his opinion in that case as applicable to this one. It is as follows: “It is the settled law of this State, that where, by a will or deed, the use of female negroes is limited to one for life or years, the person having such use is entitled to the increase born during the term, upon the principle that, the issue is to be considered, not as accessory, but as part of the use, to go to the person to whom the use is limited. Hamilton vs. Cragg, 6 H. & J., 16. Different expressions have been empjoyed but they have received one interpretation. Thus, in Scott vs. Dobson, 1 H. & McH., 160, the bequest was to the wife for life, and after her death the negroes were to be divided among others; in Somerville vs. Johnson, 1 H. & McH., 352, the bequest was of “the use” of negroes during the life of the legatee; in Standiford vs. Amoss, 1 H. & J., 526, the words were similar to those in Scott vs. Dobson; in Hamilton vs. Cragg, 6 H. & J., 16, the female negro was bequeathed to S. T., “to possess and enjoy during her natural life;” in Chew vs. Gary, 6 H. & J., 526, the testator left all his negroes free at his death, except a woman who was “to serve” his mother during her life, and then to be free;” in Sutton vs. Crain, 10 G. & J., 458, the testator directed that Mrs. Watts should have the exclusive use of a woman, until the arrival at age of the youngest of her children. In these instances the same effect was ascribed to the words cited. It may be safely assumed that if the language of this Act were part of a will, the husband would be entitled to the increase, born after the coverture; and the sole question is, [359] whether the rights devolved upon him by the law are more limited than if he claimed in any other manner? “Where words used in an Act of Assembly have received a judicial construction, it is presumed that the Legislature employed them in that sense, unless a contrary intent can be gathered from the whole Act. The first three sections secure to the wife her own negroes as well as their increase, but by the 4th the husband is to have the control and management of all — the corpus as well the issue — and at her death “such slaves,” by which is meant the corpus and the increase, during the coverture, are to descend and go to her children, “subject to the use of the husband during life, without liability to his creditors;” and this use embraces all the negroes of the wife at the time of her death. The first part of the fourth section does not give to the husband any property in the issue born during the marriage — but it is in terms secured to the wife; nor would the language employed in that part of the section give him any such title, even if the issue had not been secured to the wife; he would have had only a usufructuary enjoyment of the property. Hope vs. Hutchins, 9 G. & J., 77. But the legal effect of the words which dispose of the property at the wife’s death, is ah enlargement of his interest in the property to an absolute title in the increase at that time. “It was urged in argument that this being a statutory transfer of the title to the children, subject to the use of the husband during his life, the enjoyment of the property mentioned in the previous part of the section, must be taken as the kind of use intended, thereby leaving the issue, after the wife’s death, to follow that title. But this is merely speculative as to the meaning of the Legislature, and much might be said on both sides of the question. It is certain that the reasons on which the doctrine, as to the rights of the tenant for life, or years, or of the person entitled to the use of the property for a limited time, was established many years ago, apply with equal force to a person acquiring such interest under the Act of Assembly, as to one claiming under a, will or deed. The qualified title is devolved on him by law, by [360] which he becomes chargeable with the parents, if old and infirm, and may be compelled to support them, and as in the decided cases, the issue is given to him as an indemnity against such loss, so here, the same principle should apply, because the same words'are used, without a plain intent to the contrary. The fact that the tide is given to others does not affect the decision of the question. In some of the cases referred to, the same fact appeared. The reason of the rule applies alike to all cases where the person claiming the issue has the use of the mother, if a different intention is not manifested. “The clause exempting the property from liability to the husband’s creditors was relied upon; but that applies to the corpus and the increase at the time of the wife’s death, and not to the issue bom afterwards. If the Act had provided that neither the negroes nor the increase born during the husband’s enjoyment of the property after coverture, should be liable for his debts, the implication would arise, that the latter was not intended to vest in him absolutely,- because it would be impossible to suppose, that the Legislature intended to except the husband’s own property from such responsibility.” The Legislature by the adoption of the “Code,” have given a similar interpretation to the Act of 1842. By the second section of the 45th Article of the Public General Laws, it is provided, that if the wife “die intestate and leaving children, her husband shall have a life estate in her- property, real and personal, but if she die intestate, leaving no children, her husband shall have a life estate in her real property, and her personal property shall vest in him absolutely.” According to this, the issue bora of negro women during the ownership of the husband, would, under the well and long established law of this State, become his in absolute right. As we understand the Act of Assembly, on the death of the husband — he having survived his wife — the 'negroes which were the separate property of the wife, and those born of them during the lifetime of the wife, “descend” to her children, without the necessity of administration on her estate. [361] (Decided October 29th, 1861.) The bill not discriminating as to these different classes of negroes, the injunction could not properly issue, as prayed. As to whether or not the negroes stated in the bill to have been purchased with the money of Mrs. McKee, for her by Mr. Carroll, were so purchased, we need only to remark, that if the fact is intended to be disputed, the denial must be made in the usual mode of defence. The same remark is applicable to the allegation of fraud. Grover vs. Glenn, 3 Md. Rep., 213. Order affirmed with costs and cause remanded.